Edwin Ogba V. The State (1992)

O. I. AKPATA, J.S.C. 

By Section 33 (6)(e) of the Constitution of the Federal Republic of Nigeria 1979 every person who is charged with a criminal offence shall be entitled to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. The main question which arises in this appeal in the light of this Constitutional provision is whether it is obligatory on a trial Judge to record the fact that an accused who did not understand the English language had at his trial the assistance of an interpreter if in fact he was provided with such assistance. Put in another way, is there a presumption of regularity if there is nothing on the record to show that the accused had the assistance of an interpreter

The appellant as an accused, was charged, tried and convicted of the offence of murder at the Umuahia High Court, and was sentenced to death by hanging. His appeal to the Court of Appeal against his conviction and sentence was dismissed. He has now appealed to this Court.

The conviction of the appellant in the High Court was based mainly on the evidence of PW.5, Doctor Madukwe lzuka who performed a post mortem examination on the body of the deceased, Okoro Onyeador; PW.7 Godson Okereke into whose house the deceased ran immediately after he had been attacked; and the statement Exhibit 2 made by the accused in English and taken down in English by PW. 4, Police Sergeant Adewusi Adebowale.

It was the case for the prosecution at the trial of the accused that on 14/6/81 at about 7.30 P.M., when the deceased ran into the sitting room of PW.7, he was soaked in blood and was shouting “I am dying, I am dying”. He disclosed to PW.7 that Edwin Ogba was responsible for his plight. The appellant is Edwin Ogba. According to PW.7″ Blood was rushing from his body. Blood even rushed to the floor of my parlour. He was very weary and still saying he was dying.” After fruitless efforts to get the deceased attended to by a doctor in a number of hospitals, PW.7 succeeded in getting one Dr Ezeikpe at Alaoma hospital or clinic to do so. When the shirt the deceased had on was removed, PW.7 saw wound on his arm and stomach. According to PW.2 Marcus Nwankwo, a relation of the deceased, the doctor at Alaoma hospital or clinic decided to operate so as to find out if broken pieces of bottle were in his stomach. Before he could do so the deceased died.

The incident was reported to the Police. A team of Policemen, including PW 4, went to the house of the appellant where he was arrested and taken to the Police station where he made the statement, Exhibit 2. In it he stated thus:

“yesterday evening 14/6/81 between 8 p.m. and 9 p.m. I was going along Uzuakoli road when I got to Orlu Street junction there was a motor man who came there with a speed. I defended myself by (going) jumping the gutter, there was a man and one other man they were two. I do not know them before and I don’t know their names, one of them was discussing with the other one that, is this not this one who killed his father I was annoyed and I abused the man, the man who was staying with the man that I was abusing slapped me, then I fought with the man. I carried two bottles and broke them together I used them to defend myself when the other man carried a jack from his motor and wanted to beat me with it but he did not beat me with it. It was by the time I broke the two bottles together the pieces meet the man I was fighting with. I did not chook him directly with the broken bottles I was holding in defending myself. At that time, the man who carried jack said he was going to call police for me, then I myself entered motor and came to the Police station to report that, somebody was abusing me on the road that I was the person who killed my father. I did not tell Police that I wound anybody because I did know that the man gets wound. I did not know the number of the motor. The man who was fighting with me flog me with a stick. I have not known anyone of them more than that yesterday 14/6/81. (see the other man who carried jack, I can identify him. Many people gathered there but I don’t know any of them. It was when I got to the Police station I was told by Police that the man I fought with has died.” The corpse of the deceased was removed from Alaoma clinic to Queen Elizabeth hospital, Umuahia where PW.5, performed a post mortem examination on the body on 15/6/81. The corpse was identified by PW.2. PW.5 testified in part thus:

“On examining the corpse, I found a curved wound about 4 inches long on the front aspect of the left shoulder extending to the muscles below. This wound was stitched. There was another incissional wound measuring about 8 inches in length on the anterior abdominal wall. This wound was also stitched. These stitches were removed and the wounds explored. The intestines were grossly hyppraemic and there was dots of blood in most part of the intestines. A sharp object could have caused these injuries I described. The wounds could not be self inflicted even if the person was a mental case particularly the one on the left shoulder.

The injuries could not be caused by flying sharp objects but by direct hit by sharp object. The cause of death was excessive blood loss which led to shock.”

The appellant testified in his own defence and called no witness. His evidence which varies slightly from his extra-judicial statement reads in part thus:

“When one of the men slapped me, I retaliated by slapping him back. The other man took up a stick and started hitting me. I ran away but they pursued me. When the two men were pursuing me they were holding a stick and a jack. One person was holding a stick while the other was holding a jack. I ran near a store and collected two empty bottles packed there. As the men were pursuing me. I broke the bottles and the men went back. One of the men said they knew what they would do. They entered into a Peugeot car and drove off. The men were about 14 feet from me when I broke the bottle.

I did not use the bottle on any of them. The pieces of the bottles did not touch any of the men.

After the incident, I went to the Police Station, Umuahia. I reported that some people assaulted me along the road I did not report to the Police that any body had a wound.

I know that somebody had a wound the following day when the Police came to my house about 4 a.m. and arrested me and took me to the Police Station where they told me that the person with whom I fought the previous day has died. When I broke the bottles, the men ran back. I am not aware if any pieces of the bottles touched any of the men of the two people, I do not any of them who is dead.

The men fought me. I had nothing in me. I was annoyed when the man pointed at me that I killed my father. I picked the two bottles for my self defence. Everything happened quickly. I do not know anybody who was present when this incident happened. I had no intention of wounding or killing any of them.”

The appellant subsequently showed PW.4 the investigating police officer “the spot where the fighting took place” At the scene PW.4 observed pieces of broken bottles and blood stains on the ground. PW.4 picked up Exhibit 3, two heads of broken bottles, identified by the appellant as the bottles he smashed against each other and which he claimed to have used in self-defence.

As already pointed out the trial Judge found the appellant guilty of the offence of murder and sentenced him to death by hanging. He did not believe that the appellant never used the broken bottles on the deceased. He found as a fact that the appellant stabbed the deceased with Exhibit 3. He inferred from the circumstances of the case that the appellant intended to kill or do grievous bodily harm to the deceased.

In holding that the plea of self-defence was not available to the appellant he referred to the fact that the appellant had sufficient time to go into store, take two bottles of golden guinea beer, negotiate the price, come out of the a store, break the bottles at a distance of 14 feet from the two men who then ran away.

He concluded that the accused was not at all material time in reasonable apprehension of death or grievous harm. PW.6, Mrs. Angela Iro-Onuka had testified that at the time material to this case the appellant came to her provision store, took two bottles of beer, asked for the price and when she told him he turned away saying he would return to pay for them.

In his notice of appeal to the Court of Appeal the appellant filed a total of 17 grounds. In the Court of Appeal leave was however granted him to file an amended notice of appeal which consisted of only four grounds. I consider it necessary to reproduce the four grounds shorn of their particulars. They read:

“Ground One; Error of Law

The learned trial judge erred in law when he convicted the appellant of murder when there was no conclusive evidence as to how the deceased came by his wound.

Ground Two: Error of law:

The learned trial judge erred in law when he failed to accept the appellant’s defence of self defence when the defence was unchallenged, undiscredited and uncontradicted.

Ground Three:

The judgment is erroneous and unwarranted having regard to the evidence before the court.

Ground Four: Misdirection in law:

The learned trial judge misdirected himself in Jaw when, after holding “I accept the fact that none of the prosecution witnesses saw when and how the deceased sustained the injury”, he went ahead to convict the appellant of the offence of murder when the only inference deducible from the accused’s statement to the police, and undiscredicted testimony in court, was that of an uncontradicted denial of inflicting any wound.”

Three issues were formulated in the appellant’s brief in the Court of Appeal.

They were all resolved against the appellant and his appeal was dismissed.

In his further appeal to this Court the only grounds of appeal relied on and argued are:

“(1) The Appellant did not have a fair hearing in that although it is settled law that -the language of the court of first instance or of the court below is English, yet in spite of the fact that three of the prosecution witnesses and the appellant testified in Igbo language, there was no interpreter provided by court in respect of the evidence given by these witnesses and neither was the judgment interpreted to the appellant at the end of the trial.

(2) The court of Appeal erred in law in taking cognisance of Exhibit 2, statement of the appellant to the police which was admitted by the learned trial judge, and which was not read out in court at the time of its being admitted, and relying on it in its judgment, and this error occasioned miscarriage of justice.

(3) The learned Justices of the Court of Appeal who entertained appellant’s appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, with particular reference to the cause of death in the instant case, and this misdirection occasioned miscarriage of justice.”

It can be seen that these grounds with the possible exception of ground three are grounds which were not taken up both at the trial court and in the Court of Appeal. The appellant was granted leave to file and argue grounds one and two, the same not having been canvassed in the court of Appeal. He was also granted leave to argue ground three being of mixed law and fact.

The issues formulated in the appellant’s brief which are adopted in the respondent’s brief read:

“(1) Can it be said, having regard to all the circumstances of this case, that the appellant did have a fair hearing within the meaning and intent of section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, when it is clear that the evidence of three of the seven prosecution witnesses who testified in Igbo language was never interpreted to the court, not to mention the fact that the evidence given by the defence was itself not interpreted to the court.

(2) Can it be said, having regard to the mandatory provisions of section 137 (I) of the Evidence Act, that the prosecution in the instant case. had proved its case beyond reasonable doubt,

When, inter alia:

(i) Exhibit 2, statement of the appellant to the police was not read out in court or taken as read out as such when tendered, but was relied upon in convicting him, and

(ii) The medical practitioner who examined and treated the deceased before his death was not called by the prosecution at the hearing.”

Before the appeal was heard on 21/11/91 this Court granted the appellant’s application for an order granting him leave to apply to this Court praying it to overrule its decisions in the following cases:

(a) The Queen v. Eguabor (1962) 1 All NLR. 287; (1962) 2 SCNLR 289.

(b) Locknan & Anor. v. The State (1972) 1 All NLR. (Pt. 2) at 62: (1972) 5 S.C. 22.

(c) Gwonto & Ors. v. The State (1983) 3 SC.62: (1983) 1 SCNLR 142.

In respect of issue one which raises a constitutional question of importance, Mr. Brown-Peterside SAN, appearing for the appellant submitted that it was settled law that the language of the court of first instance is English and that section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended provides amongst other things that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality, and that section 33 (6) (e) states that every person who is charged with a criminal offence shall be entitled to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. According to learned Senior Advocate in order that it can be said that the appellant has had a fair hearing in the instant case the record must show that not only was he tried before a court established by law, but that such a court was constituted in such a manner as to secure its independence and impartiality. Learned Senior Advocate further submitted on this point that in order that it can be said that the mandatory provision of section 33(1) of the 1979 Constitution had been complied with, it must be apparent from the record of appeal:

1. that the appellant had a fair hearing within the meaning of the said section;
2. that the court which tried the appellant was properly constituted, that is to say, that it “had a suitable sworn interpreter for the benefit of the trial court and the appellant.”

Learned Senior Advocate then pointed out that in the instant case three of the seven witnesses that testified for the State, PW.1. PW.3 and PW.6 testified in Igbo language and that no where on record is it shown that the evidence of these witnesses was interpreted to the learned trial judge. Besides, the appellant gave evidence in Igbo and no where does it appear that his evidence was interpreted to the learned trial judge in the official language of the court, namely, English. He also made the point that the record does not even show that the judgment of the learned trial judge, which was in English, was interpreted to the appellant at the end of the day.

He therefore submitted that in the light of the foregoing the only irresistible inference which can be drawn in the circumstances is that the learned trial judge must have acted and did in fact act as his own interpreter with regard to the evidence of PW.1, PW.3, and PW.6 and that of the accused himself, and that it cannot be said in the instant case that the appellant did have a fair hearing. In this regard he cited the case of Mohammed v. Kano N.A. (1969) I All NLR. 424 at page 426 where Ademola, CJF. held that “the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.”

Learned Senior Advocate therefore urged us to hold, after applying the principle set out in Mohammed v. Kano N.A. (supra) to the facts of this case that the appellant did not have a fair hearing. He made it clear that he was not unmindful of the fact that the Queen v. Eguabor (supra), Locknan & Anor. v. The State (supra). Gwonto & Anor. v. The State (supra) remained binding until set aside. He therefore urged us to overrule them.

Before considering the submission of the learned Senior Advocate and coming to a decision, it is necessary to advert to the import of the three cases we have been called upon to overrule and see how relevant they are to the case in hand. In Eguabor case, going by the head notes, at pages 287 to 288, the appellant was charged with murder and was represented by counsel at his trial before the High Court. During the trial evidence had been given in English by certain witnesses. The appellant did not understand English. The record of the proceedings in the High Court did not indicate whether the evidence of those witnesses who spoke in English was interpreted to the appellant or not; but counsel for the appellant, in his submission to the Federal Supreme Court, assumed that it was not, and the respondent’s counsel did not dispute that assumption: nor was it suggested that there was anything in the evidence given in English by which the appellant would have been taken by surprise if he had understood it.

The appellant was convicted, and appealed to the Federal Supreme Court, upon the grounds. Inter alia, that the proceedings constituted a mistrial, “having been vitiated by the failure to interpete the evidence of witnesses who deposed in the English language to the appellant, and further, by the admission and consideration of the statement of appellant’s counsel purporting to disclose appellant’s instructions to him.

On appeal it was held:

(1) The right of an accused “to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence,” conferred by section 21 (5) (e) of the Constitution of the Federation, 1960, cannot be invoked, on appeal, by an appellant who was represented by counsel at the trial, as a ground for setting aside a conviction, unless he claimed the right at the proper time and was denied it.

(2) Where an accused had not expressly asked for the assistance of an interpreter, and the correct practice with regard to the conduct of proceedings in a language not understood by the accused had not been followed by the trial court, the Federal Supreme Court will, on appeal, treat the matter as a question of practice: and will consider whether any substantial miscarriage of justice had resulted from the failure of the trial court to follow the correct procedure.

In Locknan case one Peter Locknan and Happy Apolo were charged with causing the death of one Sule Salami an offence of culpable homicide punishable with death. They were both found guilty and sentenced to death. Against the decision each of the accused appealed to this court. Mr. Brown-Peterside who was then not a Senior Advocate of Nigeria argued forcefully, as he has done in this case, that the first accused was shown from the record to have spoken in Hausa and that no interpreter was affirmed on the 16th June, 1971 before the charge was put to the accused to interpret English into Hausa and vice versa, but he was not shown on the record as having beer, present on certain subsequent days of the trial when prosecution witnesses 5. 6. 8 & 9 gave evidence in English. He accordingly submitted that there had been no compliance with section 242 of the Criminal Procedure Code. Mr. Brown-Peterside submitted that interpretation was so vital to a fair hearing that he was entitled to take the objection before this Court notwithstanding any failure by counsel to object during the trial. He also submitted

that the court should not go behind the record as it stood.

In that case this Court was of the view “if the first accused could affirmatively show that an interpreter was absent then we would certainly be prepared to argue that the objection had force but that was not the case here. Mr. Brown-Peterside did not seek to advance evidence before us to show that the interpreter was not there on the day in question but he relied solely on the absence on the record of any definite statement that he was present…,. This court went on to hold that the principle in Eguahor’ s case is equally applicable to section 242(2) of the Criminal Procedure Code. This Court saw no substance in the submission.

In Gwonto’s case the accused persons were sentenced to terms of imprisonment having been charged with and convicted for various offences. On appeal to the Court of Appeal each contended that he did not have a fair trial in that, in the case of the first accused Gwonto, he had been tried jointly with persons who made their statements to the police in Hausa and gave evidence in Court in Hausa and yet such evidence was not interpreted into English, and in the case of the other accused persons who also appealed the proceedings had been conducted in English and they had not been interpreted to them in Hausa. It was submitted on behalf of the accused persons that section 33 (6) (e) of the Constitution of the Federal Republic of Nigeria 1979 and sections 241 and 242 of the Criminal Procedure Code of Northern Nigeria had been infringed. The Court of Appeal (coram Coker, J.C.A. (as he then was) Maidama, JC.A. and Karibi-Whyte, J.C.A. (as he then was) allowed the appeal of the accused persons and set aside their conviction and sentence on the ground that section 33(6)(e) of the 1979 Constitution and section 242(2) of the Criminal procedure Code were violated. The State appealed to this Court. Being of constitutional importance the appeal was, as in this case, heard by a full court consisting of Fatayi-Williams, C.J.N. Bello, J.S.C. (as he then was), Obaseki, Eso, Nnamani and Uwais, J.S.C.

In meeting the submission of Mr. Ajayi, S.A.N., for the appellant, Mr. Peteside, S.A.N., for the accused/respondent proffered the argument he had canvassed in the Court of Appeal with success. In his leading judgment Nnamani, J.S.C., referred to sub-section (6) (e) of section 33 of the 1979 Constitution which provides as follows:-

“(6) every person who is charged with a criminal offence shall be entitled-

(a)

(b)

(c)

(d)

(e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence”.

He then went on to observe at page 88, line 6 to 19 thus:

“Perhaps emphasis ought to be placed on the words if he cannot understand the language used at the trial of the offence. The right to an interpreter only arises in such circumstances, This is why it is the duty of the accused person, or counsel acting on his behalf. to bring to the notice of the court the fact that the he does not understand the language in which the trial is being conducted.

Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise,”

Nnamani, J.S.C., also referred to sections 241 and 242 of the Criminal Procedure Code which provide thus:-

“241. When any evidence is given in a language not understood by the accused and the accused is present in Court, it shall be interpreted to him in a language understood by him…….. .

“242(1). When the services of an interpreter are required by any court or justice of the peace for the interpretation of any evidence, statement or other proceedings, he shall be bound by oath or Solemn affirmation to state the true interpretation of the evidence, statement or other proceedings.

(2) When the services of an interpreter are used in any proceedings by a court or justice of the peace the record of the proceedings shall state the name of the interpreter. the languages which and in which he interpreted and the fact that he has been bound in accordance with the provisions of subsection (1) to state the true interpretation of the evidence statement or other proceedings,” This Court held that section 241 obliges the court to supply an interpreter and that section 242 was equally mandatory. Sub-section (2) thereof has to be strictly complied with. It however held that as no injustice was done by non-compliance section 382 of the Criminal Procedure Code was applicable.

This section provides:

“(382) Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or reviewed on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this criminal procedure code, unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

In urging us to overrule Eguabor, Locknan and Gwonto cases, learned Senior Advocate conjectured that this court must have used the common law principle of the presumption of regularity in interpreting the constitutional issue of fair hearing.

According to him, to use a common law principle to interpret entrenched constitutional rights would “appear to be putting the cart before the horse” He submitted that in any trial touching the fundamental rights of an accused, since the enactment of the 1979 constitution, with particular reference to its chapter 4 thereof, it is the paramount and sacred responsibility of the Judge of a High Court to inform the accused of his “entitlement” to those rights, This is so, he argued, because those rights, particularly the right of fair hearing, are rights which this Court had, held in Ariori & Ors. v. Elemo & Ors (1983) 1 SCNLR, 1 as one that cannot be waived.

Learned Senior Advocate drew attention to the fact that although the Ariori case (supra) was decided on 21/1/83 and the Gwonto case (supra) On 18/3/83, that is, roughly two months after the Ariori case, it is glaring that none of the “dramatis personae”, including himself (Mr. Peterside, SAN.) did refer this court to its decision in the Ariori” case. If the attention of this court had been drawn to Ariori case, it would, more probably than not, have affected the decision in the Gwonto case,”

Having stated in some detail the essentials of the submissions of the learned Senior Advocate in respect of the first issue for determination, I think it is necessary in resolving the issue to bear in mind that the case in hand is more related to Eguabor case than to Locknan and Gwonto cases in that in the two latter cases this court had to consider the effect of sections 241 and 242 of the Criminal Procedure Code before reaching a decision, There are no similar provisions in the Criminal Act or Law governing criminal proceedings in the Southern States. In effect in Eguabor case and in this case the observation of this Court to the effect that sections 241 obliges the High Court to supply an interpreter and that section 242 is equally mandatory and that sub-section (2) thereof had to be strictly complied with is not applicable.

Therefore whatever misgivings, if any, one may have about the application of section 382 of the Criminal Procedure Code in nullifying as it were, the mandatory provisions of sections 241 and 242 and thereby upturning the decision of the Court of Appeal in the Gwonto case cannot be extended to the case in hand. Indeed Mr. Peterside has rested his case solely on the provision of section 33(1) and (6) (e) of the 1979 Constitution. It is instructive to note that Eguabor case was based on section 21(1) and (5) (e) of the constitution of the Federation of Nigeria (Order in Council) 1960 which is worded ipsissimis verbis as section 33(1) and (6) (e) of the 1979 Constitution.

The point to note is that although sub-sections (1) and (6) (e) of section 33 of the 1979 Constitution make provision for fair hearing and insist that every person charged with a criminal offence shall have the assistance of an interpreter if he cannot understand the language used at the trial of the offence without payment, unlike the provision of section 242(2) of the Criminal Procedure Code, there is nothing in the Constitutional provision of the said sub-section of section 33 which makes it mandatory for the Court to state on its record that the requirement of the enactment has been complied with.

It seems obvious to me, with due respect, that learned Senior Advocate based its lucid, elegant and forceful submissions on the wrong premise that the fact of providing an accused with an interpreter must be stated on the court’s record. There is no doubt that to use the common law principle of the presumption of regularity to interpret entrenched constitutional rights may be inappropriate. It is however erroneous to read into a clear and unambiguous constitutional provision what it does not embrace. The provision has to be interpreted strictly in accordance with the ordinary meaning of the words used without its being adorned, as it were, with ornamental words not therein to make it attractive to wider interpretation. There is nothing in section 33 which makes it mandatory for the Court to record that an accused who could not understand the language used at the trial received the assistance of an interpreter. As stated in the case of Mohammed v. Kano N.A. (supra) cited by learned counsel. “the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case”. A reasonable person who was present in Court and observed that an accused had the assistance of an interpreter would be impressed that the accused had a fair hearing and that justice had been done. He would be unaffected by the absence from the court’s record of the assistance rendered to the accused by way of interpretation.

Learned Senior Advocate to my mind has erroneously maintained the posture he assumed in the Locknan and Gwonto cases by his assumption that there was no interpretation of the evidence from Igbo to English and English to Igbo simply because there was no specific entry in the record of proceedings that the evidence of the relevant witnesses was interpreted from Igbo to English and vice versa. To his credit, and I do not expect less from him, he did not pretend to know what actually transpired in the trial court. He was not there. The appellant has not complained that no interpreter was made available to him. Neither the appellant nor any of the witnesses has been made to swear a false affidavit that no interpreter was provided.

As rightly observed by Obaseki, J.S.C. in Gwonto case at page 73 “what is required by the Court of Appeal to satisfy it of the denial of the right is proof by credible evidence of the denial, not by mere suspicion arising from failure to keep a foil record of proceedings by the trial court”. In the same case Eso. J.S.C., rightly held.

“I cannot see any violation of the right of the respondents under S. 33 (6) (e) of the Constitution. The Constitution guarantees as fundamental, the right of every person charged with a criminal offence to be informed promptly in the language that he understands and in detail of the nature of the offence. The facts of this case show conclusively that this provision was strictly adhered to. The respondents were all represented at the trial by a legal practitioner. There was no complaint whatsoever from either the respondents or their counsel that they did not understand the proceedings in court. The Court of Appeal on the other hand proceeded on assumption that they could not have understood the proceedings as some of them gave evidence in Hausa. With respect, assumptions could never amount to evidence.”

In his leading judgment Nnamani, J.S.C. subtly pointed out with respect at pages 89 to 90 that “the error of their Lordships in the Court of Appeal was in assuming that since there was nothing on the face of the High Court records indicating that there was interpretation, there was in fact no interpretation and consequently the rights of the respondents guaranteed under section 33 (6) (e) of the Constitution 1979 were violated”. I am of the strong view that it is only if section 33 (6)(e)or any other section of the Constitution or any other applicable law had specifically made it obligatory that the fact that an accused person received the assistance of an interpreter be recorded that presumption of regularity will not hold. In fairness to the Court of Appeal, it is necessary to point out that in Gwonto case that Court did not consider section 33 (6) (e) in isolation. It was-of the view that “prima facie where the record of proceedings does not comply with the provisions of sections 33 (6) (e). 241 and 242 then the obvious inference is that there has been no interpretation and injustice has resulted thereby which requires setting aside of the proceedings”. As I already pointed out sections 241 and 242 are not under consideration in this appeal.

I am also of the firm view that the question of waiver and the role of counsel in ensuring that his client enjoys fair hearing can only call for consideration where it has been established that there was in fact no interpretation as required by section 33 (6) (e) of the Constitution. I therefore consider it hypothetical issue which does not call for consideration and resolution in this appeal.

The point must however be made that it is desirable, and it was the practice even in Courts in the south of the country which were not governed by provisions similar to section 241 and 242 of the Criminal Procedure Code. to swear interpreters (if they were not the regular court interpreters) and the fact of so doing recorded, it is also advisable for trial judges and magistrates to record the fact that interpretation was carried out where necessary. Dr. Aguda in Law and Practice Relating to Evidence in Nigeria rightly observed at page 365 paragraph 27-01 that “Whilst it is usual to swear interpreters who are not court officials it is usually regarded unnecessary to swear clerks of courts or other officials before they commence interpreting evidence to the courts and litigants”. It is hoped that during induction courses for newly appointed judges and khadis and workshops for magistrates under the auspices of the National Judicial Institute it will be brought home to participants the desirability of keeping full record of proceedings by the trial court particularly, the record of the fact of interpretation and that the interpreter was sworn.

Even granted that no interpreter was available, which was not the case, only relevant evidence not interpreted that would be expunged from the records. I do not think that in the circumstances of this case it can be said that the appellant had no fair trial. As I pointed out at the beginning of this judgment, the conviction of the appellant by the trial court was based on the evidence of PW.5, the doctor who performed the post mortem examination. PW.7 who testified as to how the deceased came into his house in agony, and the statement Exhibit 2 made by the appellant in English and taken down in English. The evidence of PW. 1. PW.3 and PW.6 who testified in Igbo language if expunged from the records would make no difference to the prosecution’s case and also the case for the defence. PW.1 was the wife of the deceased who saw him in Alaoma clinic and observed that he sustained some injuries. It was not her who identified the deceased to the doctor. PW.3 Cecilia Nkemakolam, a food hawker claimed to have seen the appellant scolding somebody “who was older than the accused by mere appearance”. She left the scene. Nothing else happened in her presence. PW.6. Mrs Angela lro-Onuko was the owner of the store from which the appellant collected two bottles. The trial judge did not make use of the evidence of this lady in respect of the bottles used by the appellant but the evidence of the appellant himself.

If one may ask, if these witnesses did not in fact understand the English language and received no assistance from an interpreter, is it being suggested that Mr. Enebeke, the state counsel representing the State asked them questions in Igbo language instead of English language and that Mr. Kaluta appearing for the appellant also cross-examined them in Igbo language and without any interpretation The trial judge recorded in English the evidence of these witnesses given in Igbo language. A situation where “the trial judge must have acted and did act as his own interpreter” as suggested by the learned Senior Advocate. is too absurd to contemplate. To say the least, it is too farfetched and obviously preposterous. This type of rationalization is dictated by the wrong assumption that there was in fact no interpretation during the proceedings.

That the appellant made his statement Exhibit 2 in English language has not been disputed. It cannot therefore be said that he could not understand the language used at the trial of the offence. In essence therefore he did not require the assistance of an interpreter as required by section 33 (6) (e) of the Constitution if indeed no interpreter was provided. The mere fact that the appellant opted to testify in Igbo language does not detract from the fact that he understood the English language. It is needless to picture how bizarre the proceedings would be if questions asked by counsel whether in English or Igbo and answers given by the witnesses and appellant were not interpreted from Igbo to English and vice-versa in the circumstances of this case by an interpreter.

As already made plain, it has not been shown that there was any breach of section 33 of the Constitution in part or in whole. The invitation to overrule this Court’s decisions in (1) The Queen v. Eguaba v. (2) Locknan & Anor v. The State and (3) Gwonto & Ors. v. The State must be turned down. I do not think it has merit. In arguing issue No.2 the learned Senior Advocate submitted that the prosecution in the trial court did not discharge the burden placed on it in the manner required by law and that the justices of the Court of Appeal mis-directed themselves generally on the principles of law relating to the onus of proof in criminal cases. Learned Senior Advocate drew attention to the fact that there is evidence on the record that before the deceased died he was examined by one Dr. Izeikpe and that the said doctor who examined and treated the deceased was never called by the prosecution during the trial. The fact that Dr. Izeikpe treated the deceased, he pointed out, is clear from evidence of PW.5, Dr. Izuka, who performed the postmortem examination, and who said that he found stitches on the body of the deceased before he died.

Learned Senior Advocate called to question the qualification of PW.5 as an expert on the subject in respect of which he gave his opinion. He drew attention the fact that all he said about himself was:

“I am a medical doctor attached to Queen Elizabeth hospital, Umuahia. I live in Quarter No. S/S No.17 in the hospital premises.”

There is nothing in the piece of evidence, he stressed, to suggest his qualification or the number of years that he had been practising, his experience as well as the reasons for his opinion.

The learned Senior Advocate however conceded that PW.5 was not cross-examined on his evidence by the defence.

As rightly submitted by Mr.Ihekire, learned Deputy Director of Public Prosecutions, the evidence of Dr. Ezeikpe would be superfluous in the light of the evidence of PW.5 which was unchallenged and uncontradicted. His evidence was that the deceased died of excessive blood loss which led to shock. It is my view that if there was no evidence from PW.7 the submission of learned Senior Advocate relating to failure of the prosecution to call Dr. Ezeikpe would have been unanswerable. PW.7 whose evidence I have earlier referred to in this judgment made it clear that when the deceased entered his house he was covered with blood and that “blood even rushed to the floor of my parlour. He was very weary and still saying he was dying.”

PW.5 found that the deceased died of excessive loss of blood. The trial judge believed the evidence of PW.7. He held that “the whole evidence shows that the accused, savagely and in a most vicious revenge, as a result of little quarrel between him and the deceased and the other man, dealt mortal wounds on the deceased with Exhibit 3- three broken bottles with the heads as hilt, as a result of which the deceased died.”

It must also be remembered that although medical evidence as to the cause of death is desirable it is not essential in all cases of homicide. In the absence of medical evidence the court can infer the cause of death from the circumstances of the evidence adduced before it. This is a case in which the cause of death would have been inferred from the evidence of PW. 7 and the statement of the appellant, Exhibit 2 if medical evidence given by PW.5 was absent. Also where there is medical evidence and it is inconclusive the court is entitled to examine the evidence before it and draw necessary inferences. See Adekunle v. The State (1989) 5 NWLR (Pt.l23) 505 at page 516 and Essien v. The State (1984) 3 sc. 14 at page 22. It is to be emphasized that it is no defence to a charge of murder that if the deceased had been attended to in time by. an experienced doctor his life would have been saved. Even the probability that the doctor who first attended to the deceased was negligent, which is not established in this case, and that such negligence could have contributed to or hastened the death of the deceased cannot avail the appellant a defence. As stated by Parker L.C.J. in the case of R. v. Smith (1959) 2 All ER. 193 at page 198 and adopted by Ademola CJF. in Queen v. Eguabor (1962) 2 SCNLR 289 at 291; (No.2) (1962) 1 All NLR. 541 at page 544:

“It seems to the Court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wounds albeit that some other cause of death is also operating……..”

In further seeking to have the judgment of the two lower courts set aside, learned Senior Advocate, obviously in pursuit of technicalities, made the point that Exhibit 2 the extra-judicial statement of the appellant was not read in open court or taken as read. This submission is also based on the fact that no entry was made by the trial judge that the Exhibit was read or taken as read. When the statement was sought to be tendered learned counsel for the accused said he was not objecting. The learned trial judge then recorded that “statement of the accused tendered admitted and marked Exhibit 2”. Learned Senior Advocate has urged us to hold that the only inference one can draw, having regard to the observations which the learned trial judge had made about Exhibit 2. and which was also accepted by the Court of Appeal, is that the trial court must have examined the Exhibit outside the court room. I find no substance in this submission.

It is instructive to note that when the appellant testified in his defence he answered under cross-examination thus:

“I made the statement to the police about this case. What I told the police is correct, that is, the contents of Exhibit 2 are correct.”

If Exhibit 2 was in fact not read, how, one may ask, did the appellant get to know the contents of Exhibit 2.

The point was also made that there was nothing to show that the judgment of the trial judge was interpreted to the appellant. I cannot easily grasp the purport of this submission. Is it that up till now the appellant does not know that he has been condemned to death

There is no doubt. I must say that the learned trial judge did not quite carry out satisfactorily, perhaps due to inadvertence, his responsibility to record not only evidence adduced before him but also procedural steps taken by the court which are designed to ensure fair hearing are dictated by rules of practice and procedure. The position however is that substantial justice should not be sacrificed on the altar of technicalities or procedural irregularities. Where an appeal court finds that technicalities or irregularities have not occasioned a mis-carriage of justice it will not set aside a judgment which is otherwise impeccable in other respects. The appeal fails. It is dismissed. The Judgment of the Court of Appeal dated 9/4/90 affirming the judgment of Alilionwu, J., delivered on 27th June, 1984 convicting the appellant of the offence of murder and sentencing him to death by hanging is hereby affirmed.A. G. KARIBI-WHYTE, J.S.C: This is a further appeal to this Court, against the judgment of the Court of Appeal Division Port Harcourt, The Court of appeal had dismissed the appeal of appellant against his conviction and sentence to death for the murder of Okoro Onyeador under section 319( I) of the Criminal Code. Cap. 30 Vol.II Laws of Eastern Nigeria 1963.

The facts of the case are that at about 7 p.m. on the 14th June, 1981 at Umuahia, the deceased was walking along Uzuakoli Road. At the Orlu Street junction he met with another person, presumably a friend. Both of them stood by the street and appeared to be having a discussion. Appellant was passing by at the time. Appellant said he heard one of those standing by pointing at him and asking the other whether Appellant was not the person who killed his father. Appellant then stopped, turned to the two men and told the person who pointed at him that he was not the person referred to. At this point one of the two men slapped him. He slapped the person in return. Fighting ensued between Appellant and the two men. One of the men armed himself with a jack he took from his car and the other with a stick. Appellant rushed into a nearby store, bought two bottles of Golden Guinea Beer, promising to pay later, and armed himself for the fight. He said the two men ran after him and were about 14 feet away from him when he broke the bottles. He claimed he did not stab anyone with the broken bottles, but that it was the flying broken pieces of the bottles that inflicted the injury on the deceased.

The deceased who was fatally injured, rushed into the house of PW7 at No. 3 Orlu Street, Umuahia, His body was dripping his own blood. The deceased told PW7 what happened and who inflicted the injury. He continued to say that he was dying. PW7 took him to the Alaoma hospital, nearby where he was treated. He died within 24 hours. The body of the deceased was later taken to the Queen Elizabeth Hospital Umuahia, where Dr. Madueke Izuka, PW5 carried out the post-mortem examination. Dr. Madueke Izuka PW5, put the 14th June, 1981 as the probable date of death of the deceased. He also from description of the injuries he found on the deceased said that they could only have been inflicted by a sharp object. They could not have been self-inflicted. He stated that the injuries could not have been caused by flying sharp object, but by direct hit by sharp object. His conclusion was that death was due to shock caused by excessive blood loss.

The learned trial Judge considered the defence of accident raised by the accused and rejected it. He held on the evidence that the conduct of the accused was calculated and savage. That section 24 of the Criminal Code on accident was inapplicable. He also considered and rejected the defence of provocation raised by the accused, because one of the two men who pointed at him and said “Look at the boy who killed his father”

The learned trial Judge found as a fact that the deceased was not the man who made the alleged offending statement. Relying on the decisions of R v. Simpson II Cr. App. R. 218, R v. George Hayward 6 C & P. 157, the learned trial Judge held that the accused was not provoked “but acted under a full understanding of his mind.” He went further to hold that even if there was provocation the force used which was intended, and is such as is likely to cause death or grievous harm was disproportionate to the alleged provocation. The defence of provocation was therefore not available to him. The defence of self-defence pleaded was also rejected.

The learned trial Judge accordingly found the accused guilty of the offence of murder, and sentenced him to death.

The Court below dismissed the appeal of the Appellant against the conviction and sentence. The rejections of the defences raised in the trial Court were affirmed by the Court below.

Appellant has further appealed to this Court. Counsel has relied on the following grounds of appeal in his argument before us –

“(1) The Appellant did not have a fair hearing in that although it is settled law that the language of the court of first instance or of the Court below is English, yet in spite of the fact that three of the prosecution witnesses and the appellant testified in Igbo language. There was no interpreter provided by court in respect of the evidence given by these witnesses and neither was the judgment interpreted to the Appellant at the end of the trial.

(2) The Court of Appeal erred in law in taking cognizance of Exhibit 2. Statement of Appellant to the Police which was admitted by the learned trial Judge, and which was not read out in Court at the time of its being admitted, and relying on it in its judgment, and this error occasioned miscarriage of justice.

(3) The learned Justices of the Court of Appeal who entertained Appellant’s appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, with particular reference to the cause of death in the instant case, and this misdirection occasioned miscarriage of justice.”

Before argument in this appeal, G. Brown-Peterside Esq. S.A.N, learned Counsel to the Appellant moved this Court for an order for leave to apply to this Court seeking to overrule the following decisions of the Court, which learned Counsel submitted can no longer be regarded as good law in view of the decision of this Court in Ariori & ors. v. Elemo & Ors. (1983) 1 SCNLR, 1: (1983) 1 S.C. 13. The cases are –

1. The Queen v. Eguabor No. 1 (1962) 1 All NLR 287 (1962) 2 SCNLR 289.
2. Locknan & Ors. v. The State (1972) 5 S.C. 22: (1972) 1 All NLR (Pt.2) 62.
3. Gwonto & Ors. v. The State (1983) 3 SC. 62: (1983) 1 SCNLR 142

This application became necessary when the arguments in support of Ground 1 of the grounds of appeal in Appellant’s brief, raised the interpretation of the provisions of the Constitution 1979. Accordingly seven justices were empaneled for the determination of the appeal.

Learned Counsel to both Appellant and Respondents filed and exchanged brief of argument. Learned counsel to the Appellant formulated two issues for determination in this appeal. Respondent’s counsel adopted these issues. They are as follows –

(1) Can it be said, having regard to all the circumstances of the case, that the Appellant did have a fair hearing within the meaning and intent of section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, when it is clear that the evidence of the three of the seven prosecution witnesses who testified in Igbo language was never interpreted to the Court, not to mention the fact that the evidence given by the defence was itself not interpreted by the court.

(2) Can it be said, having regard to the mandatory provisions of section 137(1) of the Evidence Act that the prosecution in the instant case had proved its case beyond reasonable doubt, when inter alia:

(i) Exhibit 2, statement of Appellant to the Police was not read out in Court or taken as read out as such when tendered, but was relied upon in convicting him, and,

(ii) The Medical practitioner who examined and treated the deceased before his death was not called by the prosecution at the hearing.”

The two issues above concern considerations of the circumstances of fair hearing, and the onus of proof in criminal cases. Both are critical and fundamental legal issues in the administration of justice. It is hardly arguable that a hearing is only fair when it satisfies the basic requirements of the administration of justice. When the disinterested observer is able to say that no injustice has been done to any party in the trial. A violation of the first results in a nullity. The prosecution can only claim to establish the allegation against the accused when the standard of proof legally required has been satisfied. The standard of proof required is according to section 137(1) of the Evidence Act, beyond reasonable doubt.

Learned Counsel to the Appellant, Brown-Peterside, Esq. SAN, relies on the provisions of section 33(1) which guarantees fair hearing in any trial, to support his contention that the absence of indication on the record of proceedings that the proceedings were interpreted from Igbo language, in which Appellant gave evidence at his trial into the English language the language of the Court and vice versa constituted a denial of fair hearing.

Brown-Peterside, SAN, submitted that the provisions of section 33(1) are mandatory. Learned Counsel pointed out that compliance with section 33(1) requires that it must be apparent on the record that:

(a) the Appellant had a fair hearing within the meaning of the said section.

(b) the Court which tried the appellant was properly constituted, that is to say that the said court must have been constituted in such manner as to secure its independence and impartiality. i.e. had a suitably sworn interpreter for the benefit of the trial Court and the Appellant.

Learned Counsel pointed out that it was clear from the record of proceedings that Appellant and three of the prosecution witnesses testified in Igbo language. Nowhere was it shown that their testimony was interpreted into English language to the learned trial Judge. English is the official language of the Court. It was also pointed out that the judgment of the court was not shown to have been interpreted to the Appellant. It was accordingly submitted that the only inference that could be drawn from the above is that “the learned trial Judge must have acted, and did in fact act as his own interpreter with regard to the evidence hereinbefore referred to as having been given in the Igbo language. He then came to the conclusion that “it cannot be said in the instant case that the Appellant did have a fair hearing.” Learned Counsel relied on Mohammed v. Kano N.A. (1965) 1 All NLR 424 at p.426 for this submission.

Mr. Brown-Peterside, referred to The Queen v. Eguabor; Locknan & anor v. The State (supra) and Gwonto & Ors. v. The State (supra). He conceded that these cases represent the law of this country on the interpretation of proceedings to accused persons and the observance of the constitutional requirement of fair hearing. It was however submitted that the courts relied for their decision on the common law presumption of regularity in proceedings. This Court is urged to overrule these cases. Learned Counsel relied on the United States decision of Marbury v. Madison I. Cranch. 137, 2 L. Ed. 60 (1803) for the submission that the common law rule applied being inconsistent with the provisions of section 33(1)(e) of the Constitution 1979 should be declared void and inapplicable. It was submitted that a common law principle cannot be relied upon in the interpretation of an entrenched provision of the Constitution. Ariori & Ors. v. Elemo & Ors. (supra) was relied upon.

Learned Counsel also submitted that it was the sacred responsibility of the Judge of a High Court to inform the Appellant of his entitlement to his entrenched rights under the Constitution. It was submitted that the right to fair hearing being an entrenched right under the constitution could not be waived. Learned Counsel cited and relied on the Indian case of Behram Khurshid v. Bombay State 1955 A.I.R. 123 and Ariori & Ors. v. Elemo & Ors. (supra).

Mr. Brown-Peterside referred to Gwonto & Ors. v. The State (supra). He urged that if it was the mistake of the court for not recording the interpretation, this court should follow its practice in civil cases of not visiting such errors of negligence or inadvertence of counsel on their clients, of extending the same practice to criminal cases.

The submission of Mr. Brown-Peterside on this issue is founded on the construction of section 33(1) of the Constitution 1979 or similar provisions, and the decided cases on this provision. Learned Counsel would seem to me to have ignored the facts of this case, relying entirely on what he regards to be apparent on the face of the record. Learned counsel appears to have disregarded the fact that Appellant pleaded to the charge against him. He had counsel to defend him. There were witnesses for the prosecution. He gave evidence in his own defence. The trial Judge was able to understand the language in which the trial was conducted, and wrote his judgment in the case. At no point during the trial did Appellant or his Counsel complain that they did not understand the language of the Court or of any of the witnesses during his trial.

At the risk of avoidable repetition, I summarise the sum of the complaints on this issue –

(i) No where on the record was it shown the evidence of PW1, PW3, and PW6 who testified in Igbo language was interpreted to the learned trial Judge in English.

(ii) No where in the record was it shown that the evidence of the Appellant who testified in Igbo language was interpreted to the learned trial Judge in English.

(iii) No where in the record was it shown that the judgment of the learned trial Judge which was given in English was interpreted to the Appellant in Igbo.

It cannot be disputed that a person on trial cannot be regarded as having had a fair trial where the trial was conducted in a language he did not understand. On the same hypothesis a Judge cannot be regard as having satisfied the elementary and fundamental principle of justice where the language which the person on trial speaks and in which he defended himself was not interpreted to the Judge. This concisely stated was what Ademola C.J.N. was saying in Mohammed v.Kano N.A. (1968) 1 All NLR 424, when he gave the true test of a fair hearing, as

“…..the impression of a reasonable person who was present at the trial. Whether from his observation justice has been done in the case.”

It is a fact that the language used in the Court must be of great importance to the parties to the proceedings. Accordingly effective communication is of the very essence of a fair trial. It is for this reason that the Constitution has entrenched the right to interpretation at a trial of any person. Section 33(1) is a general provision for a fair hearing within a reasonable time by a court or other tribunal. It is section 33(6)(a) which specifically provides for fair hearing for every person charged with a criminal offence. The provision for interpretation is made under section 33(6)(e) where it states:-

“to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence”

This is the provision subject matter of interpretation. The words appear to me clear and unambiguous to a large extent. It is clear in the sense that a person charged with a criminal offence is entitled as of right to have without payment the assistance of an interpreter. The condition precedent to the exercise of this right is that he cannot understand the language used at the trial.” Mr. Brown-Peterside’s main contention is that there was nothing on the record to show that there was interpretation during the trial from Igbo language to English language and vice versa. The presumption of regularity of the practice of the Court he submits cannot be invoked to neutralise a constitutional right. I agree with the submission as a valid proposition of law.

I however do not consider it a valid argument against the clear and unequivocal inference which could be drawn from the record itself. Learned Counsel to the Respondent has pointed out and I entirely agree with him that there is sufficient evidence on the record to show by implication that Appellant understood both Igbo language and English language. Appellant’s statement to the Police Exh. 2 was in English. His oral testimony at his trial (see pp. 29-30 of the record) was in Igbo language. The evidence of PW3 and PW6 was in Igbo language. There is nothing from the record to show that there was no interpretation from Igbo language to English language and vice versa. The only defect was the absence of a certificate of the trial Judge or note showing that the proceeding was interpreted. There is no doubt there is the useful usual practice to so indicate. There is neither a statutory or constitutional support for the practice. The non-compliance with the practice can therefore not affect the validity of the proceedings. Appellant could not have raised any objection on that ground.

It was submitted that where the testimony in Igbo language was nut interpreted into English language which is the language of the court, the Judge can only be deemed to have relied on his own private knowledge. If this is the situation and indeed there was no interpretation into English language the trial would not have been conducted in the language of the Court, and would not have satisfied the test in Mohammed v. Kano N.A. (supra). I accept the submission of learned counsel to the Respondent, that there was interpretation of the proceedings from Igbo language into English language as in the normal course of business. There is internal evidence in support of the claim. This is clearly reflected in the fact that Counsel who appeared for the Appellant cross-examined the witnesses who gave their evidence in Igbo language. The learned trial Judge recorded their testimony given in Igbo language, in English language. This could not have been done if there was no interpretation.

I am satisfied from the words of section 33(6)(e) that the right to ask for the assistance of an interpreter arises only where the accused “cannot understand the language used at the trial.” It is the right of the accused to be exercised only on that condition. The evidence in this case is that Appellant does not fall within the qualifying condition for the exercise of the right. There was no evidence that Appellant does not or cannot understand the language used at the trial. The evidence we have is the converse.

It is conceded that the effect of the violation of a fundamental right is in the breach in this case. The trial is perfectly valid. On the view I have adopted, it does not seem to me necessary to consider whether this court should overrule its previous decisions in Queen v. Eguabor (supra) Locknan & anor. v. The State (supra). Gwonto & Ors. v. The State (supra). However, in the interest of completeness I will comment on these cases.

In Eguabor, as in the instant case, appellant was charged with Murder. He was represented by Counsel. During the trial evidence had been given in English by some witnesses. Appellant did not understand the English language. He understood only Ishan. At the trial, Appellant disputed the correctness of the English translation of his statement in Ishan language. His counsel did not object to the statement being tendered. His reason was that accused’s statement that he was sick and could not get up, was different from this instruction that he went to tap palm wine on the day in question. There was no indication on the record of proceedings that the evidence of these witnesses in English was interpreted into the language understood by Appellant. Learned Counsel submitted that there was a mistrial because no interpreter was provided.

Allowing the appeal, the Federal Supreme Court held that the right to interpreter under section 21(5)(e) cannot be invoked on appeal by an Appellant who was represented by Counsel at the trial as a ground for setting aside a conviction, unless he claimed the right at the proper time. It was also held that where the accused has not expressly asked for assistance of an interpreter, and was represented by Counsel at the trial, the Federal Supreme Court will treat the matter as one of practice, so that it will always be a question for the Appeal Court to consider whether any miscarriage of justice had resulted from a failure to follow the practice.

It is important to observe that the Court was here construing a constitutional provision. It is not dealing with a rule of practice. It is concerned with the exercise of an entrenched right. The facts clearly show that Eguabor did not understand English language. He also challenged a translation into English of his statement in Ishan. It seems to me in the circumstance that he falls squarely within S.21(5)(e) and required an interpreter. The absence of an interpreter is a violation of his Constitutional right. Obviously Eguabor is the person on trial. He cannot follow the proceedings without interpretation into Ishan language. Counsel was not on trial.

I think the right under section 21, which enables the accused to understand the proceedings, is that of the person on trial. It is not a right which could be waived by Counsel. It is therefore not conceivable that a violation of the right could be cured by presence of counsel.

The Federal Supreme Court held that where the assistance was not expressly asked for, where accused was represented by Counsel, at the trial, the Court will treat the matter as one of practice. With considerable respect to their Lordships I doubt the correctness of this proposition of law. I am not sure the Federal Supreme Court could convert the recognition of the exercise of an entrenched right into one of discretion allowed by practice. I do not think the allegation of substantial miscarriage of justice could be queried where the accused did not understand the language in which he was tried. The question of legal representation cannot cure the defect. The miscarriage of justice is implicit in the violation of the right.

In Locknan, Locknan and Apollo were charged with the causing of the death of Sule Salami. They were found guilty and sentenced to death. Mr. Brown Peterside submitted that there was on the record no evidence of compliance with section 242 of the Criminal Procedure Code. It was submitted that being vital to the trial, the objection of absence of interpretation could be taken for the first time even on appeal. The Court observed that since it was not shown affirmatively that an interpreter was absent, the objection had no force. The court went on to hold that the principle in Eguabor was equally applicable to section 242(2) of the Criminal Procedure Code.

In Gwonto’s case, which also involved interpretation of section 242(2) of the Criminal Procedure Code, this Court held that although the provisions of sections 241 and 242 which are mandatory should be strictly complied with, where no injustice has occasioned from non-compliance, section 382 of the Criminal Procedure Code was applicable.

In Gwonto as in the instant case, learned Counsel relied on section 33(6)(e) of the Constitution 1979. Sections 241 and 242 of the Criminal Procedure Code which was not complied with in Gwonto’s merely reenacted the provisions of section 2I(1) and (5) of the Constitution 1960 which is in pari materia with section 33(6)(e) of the Constitution 1979.

It seems to me that the ghost of Eguabor was still active in determination of Gwonto as it did in Locknan. I say this because there is no place for considering the question of miscarriage of justice where the violation of a fundamental right is established. However, I think the only points of reconciliation are on the facts. It is apparent on the record that in Eguabor the accused did not understand English language. It was also clear that the proceeding was not interpreted. Gwonto assumes this because there was nothing on the record to show that there was interpretation. There was no evidence to show that the accused persons did not understand the English language, and therefore would require interpretation. In Gwonto the breach of the constitutional right of interpretation is inferred from the absence of interpretation. Both however rest on the construction of the provision of the Constitution. Hence, whereas the submission succeeded in Eguabor, it did not in Gwonto.

Like Gwonto, Locknan did not show affirmatively that an interpreter was absent. The common law presumption of regularity of official acts was applied. Section 242(2) was deemed to have been complied with.

There is a proposition in Eguabor which raises a fundamental question as to its validity. This is that the right to interpretation cannot be invoked to set aside a conviction on appeal, by an appellant represented by Counsel, unless, he claimed the right at the proper time and was denied it. This proposition assumes the validity of the trial despite the violation of the constitutional provision as to fair hearing. It also assumes that the exercise of the right to demand interpretation is that of Counsel, or jointly enjoyed by Counsel and the accused. I have already pointed out that the resultant effect of the breach of section 33(6)(e) of the Constitution 1979 is nullity of the proceedings. It is different from section 241, 242 of the CPC which has section 382 of the CPC to cure the defect. Even in that case being a violation of section 33(1)(6)(e), of the Constitution 1979, section 382 is of no avail.

This Court has held in Ariori & Ors. v. Elemo & Ors that a fundamental right cannot be waived. Again it is a right of the accused and not one which can be exercised on his behalf.

There is no evidence in this case to substantiate the allegation of any breach of the provision of section 33 of the Constitution 1979. There is therefore no basis for the invitation to this Court to overrule its decisions in Eguabor Locknan and Gwonto.

I now turn to the second issue. This is whether on the evidence before the learned trial Judge the prosecution discharged the burden on it required by law and whether the Justices of the Court of Appeal did not misdirect themselves on the principles of law relating to the onus of proof in criminal cases.

In his submissions on this issue, Mr. Brown-Peterside learned Senior Counsel for the Appellant drew attention to the statement of the Appellant, Exhibit 2. He submitted that Exhibit 2 was not read out in open Court or taken as read. It was therefore not admissible. He also referred to the fact that one Dr. Ezeikpe, who first treated the deceased at Alaoma Hospital before he was taken to the Queen Elizabeth Hospital, was not called as a witness in this case. Counsel also questioned the professional qualification and experience of Dr. Madueke lzuka. PW5 who performed the postmortem examination on the deceased. He however conceded that there was no cross-examination on the qualification and experience of PW5.

In his reply to the admissibility of Exhibit 2, learned Counsel to the Respondents submitted that the statement of Appellant, having been tendered by the Prosecution was already in evidence in the case as part of the case of the prosecution. The learned trial Judge was therefore entitled to look at it in deciding the case.

Mr. Brown-Peterside’s submission was made on the basis that the trial Judge made no entry that Exh. 2 was read or taken as read. It is on record that when the prosecution sought to tender the statement of the Appellant, his counsel stated that he had no objection. The ordinary practice is that learned counsel to the accused is shown the statement sought to be tendered. This affords him the opportunity after consultation with the accused to raise any objection as to its admissibility. Having raised no objection the trial Judge recorded “the statement of the accused tendered was admitted and marked Exhibit 2.”

The suggestion that the only inference to be drawn from the above facts is that the trial Judge must have examined the Exhibit outside the court room. Such a suggestion is inconsistent with the evidence on the record and cannot be a reasonable inference from the evidence available. There is no substance in the submission.

The criticism is that Dr. Ezeikpe who first treated the deceased should have been called as a witness. It was therefore submitted that failure to call Dr. Ezeikpe as a witness has affected the proof of the death of the deceased beyond reasonable doubt. The first Doctor who treated the deceased could have given evidence of the nature of the treatment he gave him. This will reveal any contributory causes of the death. The Court below was therefore in error in affirming the judgment of the trial Coun. It is well settled that a charge of Murder is established when the prosecution proves the following beyond reasonable doubt. That (a) the deceased has died, (b) that death of the deceased has resulted from the act of the accused (c) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence – See Akinfe v. State (1988) 3 NWLR (Pt.85) 729, Onah v. The State (1985) 3 NWLR (Pt.12) 236.

Where direct evidence is not available, circumstantial evidence cogent, pointing directly, irresistibly and unequivocally, and compellingly at the accused is admissible, See Ukorah v. State (1977) 4 SC. 167; Fatoyinbo v. A-G. Western Nigeria (1966) WNLR 4 Gabriel v. State (1989) 5 NWLR (Pt.122) 457; Atano v. A-G Bendel (1988) 2 NWLR (Pt.75) 201.

The evidence in this appeal is that Appellant had a fight with two men. He used broken bottles in the fight. One of the two men in the fight had stab wounds inflicted from a sharp object. This is according to the expert medical evidence consistent with a broken bottle. There was evidence that the deceased was one of those involved in the fight. He was the one injured. He died within 24 hours of the injury.

There was evidence of PW7, of the deceased’s dying declaration that the injury was inflicted on him by the accused. See Akinfe v. State (1988) 3 NWLR (Pt.85) 729. It has long been established that medical evidence as to the cause of death is not an invariable essential requirement in all cases of homicide. In the absence of medical evidence the court can infer cause of death from the circumstances of the evidence adduced before it. In this case the evidence of PW7; the statement of the Appellant, Exhibit 2, and the fact of the death of the deceased within 24 hours are sufficient to enable inference of death. – See Adekunle v. The State (1989) 5 NWLR (Pt.123) 505, 516.

It has not been accepted as valid defence in a charge for murder that there were contributory causes over and above the intentional act of the accused. It is also no defence that if the deceased had had immediate medical attention by an experienced doctor, he would not have died. The contributory negligence of another in trying to save the deceased’s life is no defence. The evidence in this case is overwhelming that the deceased died as a result of stab wounds inflicted on him by the Appellant. The prosecution has discharged the burden of proof on it to establish the guilt of the accused beyond reasonable doubt. The Court was right in affirming the decision.

For the reasons I have given in this judgment and for the much fuller reasons in the judgment of my learned brother Akpata J.S.C whose conclusions I agree with, I also will dismiss and hereby dismiss this appeal.S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Akpata, J.S.C. which has just been delivered. I am in complete agreement with him that the fact that the record of proceedings did not show that there was interpretation from Igbo to English and vice versa is no conclusive proof that there was no interpretation of the proceedings. In my view, it has not been shown that there was any breach of the provisions of Section 33 of the 1979 Constitution. The invitation to overrule the decision of this Court in (1) The Queen v. Eguabor. (1962) 1 All NLR 287, (1962) 1 SCNLR 289 (2) Locknan & Anor. v. The State (1972) 1 All NLR (Pt.2) 62; (1972) 5 S.C. 22 and (3) Gwonto & Ors. v. The State (1983) 3 Sc. 62 is misconceived and it is accordingly refused.

As for the conviction of the appellant, I am satisfied that there was ample evidence adduced by the prosecution that warranted the decision of the trial court, and in my view, the Court of Appeal was absolutely right in dismissing the appellant’s appeal and affirming the decision of the trial court. The appeal fails in its entirety and it is accordingly dismissed. The judgment of the Court of Appeal affirming that of the trial court delivered on 27th June, 1984 convicting the appellant of the offence of murder and sentencing him to death by hanging is hereby affirmed.S. M. A. BELGORE, J.S.C.: The appellant, Edwin Ogba, was charged with murder before the High Court at Umuahia in the former Imo State under section 319 Criminal Code of the former Eastern Nigeria Laws of 1963 applicable in Imo State. The victim, Okoro Onyeador died of wounds inflicted on him in two main places shoulder and abdomen. The wounds, according to medical evidence uncontradicted, were caused by sharp object and could not have been self-inflicted. The wounds were deep into the body and the one that penetrated the abdomen affected the intestines which thus became hyperanaemic with a lot of blood drained into the intestines. The death was caused by excessive blood loss from the wounds and shock. Cecilia Nkemakolam (P.W .3) was returning home from where she went for firewood and saw the appellant having some argument with a man who was considerably older than him, and was abusing him. She advised him to desist from such bad behaviour, but he would not listen. She left the scene. Later the deceased was found stabbed and bleeding profusely. Godson Okereke (P.W.7) was in his house listening to a play on the radio when Okoro Onyeador, the deceased, rushed in after knocking at the door. He was drenched in blood and was shouting “I am dying, I am dying”, and that it was the son of the late Ogba, Edwin that “had killed him”. Okoro Onyeador was taken to the hospital where he died despite the initial treatment. Nobody actually saw the stabbing for P.W.3 left the scene before then. However, P.W.6, Mrs. Angela lro-Onuka, a beer seller testified that the appellant came to her shop and removed two beer bottles which he promised he would come later to pay for.

There would have been no other evidence of stabbing but for the voluntary statement of the appellant tendered as Exhibit 2, which reads as follows:

“Yesterday evening 14/6/81 between 8 p.m and 9 p.m, I was going along Uzuakoli road when I got to Orlu Street junction there was a motor man who came there with a speed I defended myself by (going) jumping the gutter, there was a man and one other man they were two I do not know them before and I don’t know their names, one of them was discussing with the other one that is this not this one who kill his father I was annoyed and I abuse the man; the man fat small but I tall pass him, then the other man who was staying with the man that I was abusing slapped me, then I fought with and broke them together I used them to defend myself when the other man carried a jack from his motor and wanted to beat me with it, but he did not beat me with it. It was by the time I broke the two bottles together the pieces meet the man I was fighting with, I did not chook him directly with the broken bottles I was holding in defending myself. At that time the man who carried jack said he was going to call Police for me, then I myself entered motor and came to the Police Station to report that somebody was abusing me on the road that I was the person who kill my father. I did not tell Police that I wound anybody because I did not know that the man get wound. I did not know the number of the motor. The man who was fighting with me flog me with a stick. I have not known anyone of them more than that yesterday 14/6/81.lf I see the other man who carried jack I can identify him. Many people gathered there but I don’t know any of them. It was when I got to the Police Station I was told by the Police that the man I fought with has died.

Edwin Ogba 15/6/81”

In his evidence in court the appellant gave some twist to his voluntary statement; that even though two men he never met before attacked him with stick and motor jack and that when they pushed him and slapped him, he ran to P.W.6 shop to pick two empty bottles and ran back to the scene where he broke the bottles, he never attacked any of them. The two men were frightened, according to him, and they entered into a Peugeot car and drove away. He maintained that none of the men was touched with the bottles before they ran away. In Exhibit 2 he said that when he broke the two bottles one of the men accosting him was hit or as he put it “the pieces met the man I was fighting with. I did not chook him directly with the broken bottles I was holding in defending myself”. The incident that seemed to have caused the confrontation was the allegation by the appellant that the deceased or deceased’s friend pointed at him as the person who killed his father.

Learned trial Judge considered the whole evidence before him and found the appellant guilty of murder. He believed the appellant used the broken bottles to stab the deceased. Contrary to the appellant’s assertion that his assailants drove away in a car from the scene, the deceased, drenched in his own blood, rushed to the house nearby where the P.W.7 was listening to radio.

The appellant’s appeal to Court of Appeal, Port Harcourt Division, was dismissed. Thus the appeal to this Court. The original grounds of appeal, were amplified by the motion on behalf of the appellant asking this Court to overrule its decisions in the following cases:

1. The Queen v. Eguabor No.1 (1962) 1`All NLR 287 (1962) 2 SCNLR 299
2. Locknan & Anor v. The State (1972) 1 All NLR (Pt.2) 62
3. Gwonto & Ors. v. The State (1983) 3 S.C. 62; (1983) 1 SCNLR 142

The Brief of argument filed by Brown-Peterside, S.A.N. for the appellant narrowed the grounds of appeal to be argued down to the following, including additional grounds of appeal filed with leave:

“1. The appellant did not have a fair hearing in that although it is settled law that the language of the Court of first instance or the Court below is English, yet in spite of the fact that three of the prosecution witnesses and the appellant testified in Igbo language, there was no interpreter provided by Court in respect of the evidence given by these witnesses and neither was the judgment interpreted to the appellant at the end of the trial.

2. The Court of Appeal erred in law in taking cognisance of Exhibit 2, Statement of the appellant to the Police which was admitted by the learned trial Judge, and which was not read out in Court at the time of its being admitted, and relying on it in its judgment, and this error occasioned miscarriage of justice.
3. The learned Justices of the Court of Appeal who entertained appellant’s appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, with particular reference to the cause of death in the instant case, and this misdirection occasioned miscarriage of justice.”

Learned counsel then went on to formulate issues for determination as follows:

1. Can it be said, having regard to all the circumstances of this case, that the appellant did have a fair hearing within the meaning and intent of section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, when it is clear that the evidence of three of the seven prosecution witnesses who testified in Igbo language was never interpreted to the Court, not to mention the fact that the evidence given by the defence was itself not interpreted to the court.
2. Can it be said, having regard to the mandatory provisions of section 137(1) of the Evidence Act, that the prosecution in the instant case, had proved its case beyond reasonable doubt, when, inter alia:

(i) Exhibit 2, statement of the appellant to the Police was not read out in court or taken as read out as such when tendered but was relied upon in convicting him. and

(ii) The medical practitioner who examined and treated the deceased before his death was not called by the prosecution at the hearing.”

Learned counsel for the appellant opened the argument in the Brief and by emphasis in Court that the appellant in the trial court never had a fair hearing and that fair hearing is a fundamental issue under the Constitution of the Federal Republic of Nigeria 1979. The Constitution (supra) provides “33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or the tribunal established by law and constituted in such a manner as to secure its independence and impartiality (4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a Court or tribunal…

(6) Every person who is charged with a criminal offence shall be entitled –

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence . (e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial.”

It should be noted that the subsection (6) (supra) in paragraph (c) thereof provides for right to “defend himself in person or by legal practitioner of his choice”.

The record of proceedings is very clear as to what took place in the trial court. The appellant made a voluntary statement to the police on his arrest after it was decided to charge him with murder. He made the statement in English. The statement was tendered in Court, it was not objected to and was admitted as Exhibit 2. Before trial proceeded to evidence the charge, as amended, was read to the appellant. Learned trial Judge recorded the following:

“…charge read and explained to the accused. Court is satisfied that the accused understands the charge. The accused pleads not guilty to the charge.”

Thereafter the appellant was recorded to have applied for an adjournment so as to have a counsel to defend him. At the next adjourned date, Mr. C.A. Kalunta, of counsel, appeared for the appellant and defended him throughout the High Court hearing. Of the seven witnesses for the prosecution, four gave evidence in English, the remaining three in Ibo, and all were cross-examined by Kalunta. Esq. The appellant gave evidence in Ibo and he was cross-examined by State Counsel. B. N. Enebeke, Esq. and from his answers there is no indication that the appellant never understood the questions. It is pertinent his answers in cross-examination be fully copied:

“I made a statement to the Police about this case. What I told the Police is correct, that is, the content of Exhibit 2 are correct. I did not imagine that the two men were talking about me. The men pointed at me. There was no time the man put it in form of a question: rather one of them pointed at me and said this was the boy who killed his father. I saw the man who pointed at me and made the statement. The statement annoyed me and not the slap. I did not stab anybody with the broken bottles. I did not negotiate for the price of the beer with the seller.

I took the police to the scene of the accident. i showed the Police the broken two bottles I used for my defence. People were around when the incident happened but I do not know any of them. I did not stab any of the two men with broken bottles. One of the men hit me with a stick. One of the men collected the jack from their vehicle. I am not telling lies.”

There is nowhere in the record of proceedings where it was indicated an interpreter was employed for the benefit of the appellant. But at the same time reading through the entire record, it is clear from even the evidence of the appellant that he understood all that transpired at the trial. He was allowed a counsel of his choice who was in court throughout the proceedings and cross-examined the prosecution witnesses and raised no objection as to the absence of interpretation. There are two practices on the interpretation. of proceedings in this country. One is a matter of normal practice aided by provisions of S.33(6)(e) of the Constitution 1979 (supra) whereby an accused person not understanding English or any other language used at the proceedings must be provided with an interpreter without payment by him; that is to say, the interpreter must be paid by the Court if he is not already a member of the Court’s staff. The criminal procedure Laws used in some States of the Federation have no express provision for interpretation, only the Constitution provides for this facility; before the Constitution. it was merely a matter of practice to provide an interpreter. But the onus is on the accused person to indicate clearly that be could not follow proceedings in the language being used at any stage of the trial so that an interpreter will be provided. Despite this Constitutional requirement there is no statutory requirement in some States in the procedural Law to indicate on the court record that an interpreter had in fact been used. In the States created out of the former Northern Nigeria there is much emphasis on the necessity for indicating on the record that interpretation had in fact been rendered for the proceedings in the language understood by the accused person and the witnesses and for the benefit of the court. Thus the provisions of sections 241 and 242 Criminal Procedure Code Law read as follows:

“241. When any evidence is given in a language not understood by the accused and the accused is present in court. it shall be interpreted to him in a language understood by him.

242(1) When the services of an interpreter are required by any court or justice of the peace for the interpretation of any evidence or statement, he shall be bound by oath or solemn affirmation to state the true interpretation of the evidence or statement.

(2) Whenever the services of an interpreter are used the court or justice of the peace shall include in the record of any evidence or statement so interpreted a certificate that the evidence or statement was interpreted by an interpreter duly sworn, in accordance with the provisions of subsection (1).”

In the Northern States the practice has been to ask the accused person after First Information Report is read to him whether he is guilty of the offence alleged in it or not and if he could not understand English any interpreter is immediately provided as required by s.241. Further, it is mandatory to endorse on the record of proceedings at the end of each witness evidence the certificate mentioned in S.242(2) (supra).

In the Southern States still attached to apron string of old English pre-1900 Criminal Procedure where Criminal Procedure Law is the applicable law, there is no provision for interpreter much less the procedure for indicating use of an interpreter. In Imo State (now Abia State) the only requirement in Criminal Procedure Law for interpretation and the only binding force for interpretation is S.33(6)(e) of the Constitution of 1979. The Supreme Court had opportunity to consider the situation as in Imo State in the case of Peter Locknan & Another v. The State (1972) 5 S.C. 22 following the earlier case of the Queen v. Eguabor No.1 (1962) 1 All N.L.R. 287 (1962) 2 SCNLR 289 (also in 2 N.S.C.C. (1961-62) 86 that where an accused person is represented by counsel and no objection was raised at the trial as to the accused not understanding the language of the proceedings, the proceedings including the judgment will not be vitiated on the ground alleging the appellant never understood the language of the proceedings. Brett FJ (as he then was) took pains to distinguish the position under the Criminal Procedure Code of Northern Nigeria and the Criminal Procedure Laws of the Southern States. He also drew analogy from the situation in Criminal Appeal Court in England where failure of interpretation was treated as a mere matter of practice [R. v. Lee Kim (1916) 1 K.B. 337]. Of course the practice in England in 1916 is analogous with the procedure in our present Criminal Procedure Laws of Southern States that still refused to streamline the procedure to provide for interpretation and enhance the provision of Fundamental Rights in the Constitution. But it must be emphasized that the English Constitution is bereft of our own Fundamental Rights.

It is to be observed that Nnamani LS.C in The State v. Salihu Mohammed Gwonto (1983) 3 S.C. 62 adopted the rationes decidendi in Eguabor and Locknan (supra) and he went further to posit that it was the duty of the accused persons at the earliest opportunity to indicate to the Court of trial that he could not follow the proceedings of the court in the languages being used. In that wise this court held that once an accused is represented by counsel he cannot rely on his lack of understanding the language of the court unless it could be established that as a result miscarriage of justice had been occasioned. To my mind the all embracing provisions of sections 241, 242(1) and (2) of the Criminal Procedure Code read in conjunction with S.33(6)(e) of the Constitution need deeper interpretation. In the first place when a First Information Report in the Magistrate Court or a charge in the High Court is read to an accused person, the accused need not make a request for an interpreter; he speaks his language to indicate he has no knowledge of English and it is incumbent on the Court concerned at that stage to provide an interpreter in the language understood by the accused. Compliance with S.241 and S.242(2) and (2) C.P.C. shall then be apparent on the court record. The question of language should not be taken for granted where the Constitution that lays down a general principle as to Fundamental Right to it, and a procedural law providing in detail how that right is to be provided are clear with mandatory provisions.

To the case in hand the provisions of S.241 and 242 C.P.C. are not in issue. The procedure is silent as to interpretation, in the jurisdiction involved i.e. High Court of Imo state; though the Constitution of 1979 provides for services of an interpreter, the substantive law does not and it is the rule of practice to follow the Constitution. In doing so, however, the presence of counsel representing the accused is enough to negative the purported absence of an interpreter. I shall venture to add that the presence is not enough, it must be clear by reading the record of proceedings that the counsel of the accused person never raised any objection to the absence of an interpreter or that the accused does not follow the language of the proceedings. While in the jurisdiction covered by Criminal Procedure Code strict compliance with section 242(2) thereof is essential Ibrahim Shinfida v. Commissioner of Police (1970) NNLR 1131 i.e. whereby a certificate indicating the name of the interpreter, how he is sworn, the languages he interpreted must be endorsed at the end of the evidence of each witness, this is not deemed as necessary under Criminal Procedure Actor Law applied in the Southern States. See also Abdu Dan Sarkin Noma v. Zaria Native Authority (1963) NNLR 97, 102; Buraimoh Ajayi & anor v. Zaria Native Authority (1963) 1 All NLR 169, (1963) 1 SCNLR 296, where there were no counsel for the accused at trial courts.

Apart from the Constitution in S.33(6)(e) (supra), there is no procedure in the jurisdiction where the appellant now in this court was tried for interpretation except as a matter of practice. But by virtue of the Constitution there must be interpretation of the proceedings in the language understood by the accused. The record of proceedings before us is clear; it is presumed complete as there is no affidavit that it is not so. The practice is for court clerk to interpret. Some witnesses spoke English, others including the appellant spoke Ibo. Only two languages were in issue. I do not claim to know the language understood by learned trial Judge apart from English which is the language of the Court, nor can I deduce that Kalunta, Esq. of counsel for the appellant, did not follow the proceedings because he cross-examined ably and led the appellant in evidence in chief. It is clear there was full understanding of the proceedings.

No representation was made by the appellant or his counsel at the trial court as to inability of the appellant to follow the proceedings on account of the language used by the court. The absence on written record of the fact of interpretation will not vitiate a trial unless it is clear, and clear on the record, that the appellant did not follow the proceedings in which a miscarriage of justice would have been occasioned. [See Muhammadu Arab v.Bauchi N.A. (1965) NNLR 48, 50; Ubi Yola v. Kano NA (1961) NNLR 103.also in (1961) All NLR 549.551. In the absence of miscarriage of justice there is a presumption that the trial was regular and in the absence of statutory requirement of a certificate on record as to interpretation the absence of any notion of interpretation does not mean no interpretation actually took place. Omnia preasumunfur rite et solemnitter esse ucta. On this the appeal has no merit.

As for proof beyond reasonable doubt there is hardly anything on record to vitiate the provisions of S.137(1) Evidence Act (now S.138(1) Evidence Act. Cap 112. Laws of the Federation of Nigeria 1990. The trial Court had every opportunity to hear and see the witnesses whereby he assessed their credibility. Court of Appeal never interfered with the findings of fact. There is no circumstance, weighty enough to disturb the concurrent findings of the courts below. The voluntary statement of the appellant was admitted in Court of trial without objection and the attack that it was not read and interpreted to him then. to my mind, cannot upset the very fact that the appellant tacitly admitted it as his voluntary statement.

There is nothing on the record slightly indicative of lack of fair hearing. The appellant had counsel of his choice throughout the trial. All witnesses that were called were cross-examined by his counsel. Contrary to claim before this Court. I find nothing to vitiate the presumption of regularity that the appellant followed the proceedings wherefore his counsel raised no objection. I commend the great industry of Brown-Peterside. S.A.N. for the Brief and the argument in his appeal, perhaps his efforts would suffice for another occasion in a case from another jurisdiction; in the present appeal the odds are that the appellant had a fair hearing and his appeal has no merit. I do not see how, on the state of the law in the jurisdiction where the trial took place. I can reverse the decisions of this court in the cases of The Queen v. Eguabar (1962) 1 All NLR 287; (1962) 2 SCNLR 289 Lockman & Anor. v. The State (1962) (Pt.2) 1 All NLR 62; and The State v. Gwonto & Ors. (1983) 3 S.C. 62; (1983) 1 SCNLR 142. The sum total is that this appeal fails on all grounds and it is dismissed. The decision of the Court of Appeal upholding the conviction and sentence nf trial court on the appellant are affirmed.

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